Curia, per
Sutherland, J.Punvpdly was a competent juror. The company of which he was a stockholder, are not responsible, in any event, on account of a recovery against the toll gatherer, for a violation of the 16th section of the statute under which this action was brought, (1 R. L. 236.) For delay or extortion by the tollgatherer, under the 9th section, the company are responsible, if the penalty cannot be collected from the goods and chattels of the defendant. That provision is not incorporated into the 16th section. The tollgatherer may be imprisoned on any judgment upon the 16th section ; but not under the 9th.
The certificate of the 23d of September, 1824, did not authorize the tollgatherer to shut the gate and demand toll. The 16th section directs, that when a gate shall be open, ed, by order of the commissioners, &c. it shall be opened, *168“ and shall remain open, and no toll shall be demanded in passing the same, until a certificate is received by the person keeping such gate, under the hand of one of the commissioners aforesaid, that such road is in sufficient repair, and granting permission to shut such gate.” The certificate must not only contain a permission to shut the gate, but it must also declare the road to be in sufficient repair. When a gate is once opened by order of the commissioners, it cannot be shut again until the road is put in sufficient repair. Whether it is in sufficient repair or not, it is undoubtedly the province of the commissioner to determine ; and if he will certify that it is, and order the gate to be shut, the tollgathercr incurs no hazard in obeying the order. But if, as in this case, it appears on the face of the certificate, that the road is not in repair, and the order to shut the gate is founded on the alleged expectation that the road will be repaired, and not on the fact that it has been, the tollgatherer is bound to know that the order is unauthorized ; and he obeys it at his peril. There is no hardship in this. He is not responsible for the truth or falsehood of the certificate. All he has to do, is to see that it assert the fact that the road is repaired ; and, on that ground, permits or orders him to shut the gate.
The judgment below must be reversed; and a venire de novo awarded by the Broome common pleas.
Judgment reversed.